1. ALIENS, CITIZENS, AND
The Constitution does distinguish in some respects between
the rights of citizens and noncitizens: the right not to be discriminatorily
denied the vote and the right to run for federal elective
office are expressly restricted to citizens.12 All other rights, however,
are written without such a limitation. The Fifth and Fourteenth
Amendment due process and equal protection guarantees
extend to all "persons." The rights attaching to criminal trials,
including the right to a public trial, a trial by jury, the assistance
of a lawyer, and the right to confront adverse witnesses, all apply
to "the accused." And both the First Amendment's protections
of political and religious freedoms and the Fourth Amendment's
protection of privacy and liberty apply to "the people."
The fact that the Framers chose to limit to citizens only the
rights to vote and to run for federal office is one indication that
they did not intend other constitutional rights to be so limited.
Accordingly, the Supreme Court has squarely stated that neither
the First Amendment nor the Fifth Amendment "acknowledges
any distinction between citizens and resident aliens."13 For more
than a century, the Court has recognized that the Equal Protection
Clause is "universal in [its] application, to all persons within
the territorial jurisdiction, without regard to differences of ...
nationality."14 The Court has repeatedly stated that "the Due
Process Clause applies to all 'persons' within the United States,
including aliens, whether their presence here is lawful, unlawful,
temporary, or permanent."15 When noncitizens, no matter what
their status, are tried for crimes, they are entitled to all of the
12. U.S. CONST. art. I, §§ 2, 3; U.S. CON ST. art. II, § 1; U.S. CONST. amend. 15.
The Constitution's limitation to citizens of the right against discriminatory denial of
the vote does not mean that noncitizens cannot vote. If a state or locality chooses to
enfranchise its noncitizen residents, it may do so. Indeed, until the early twentieth
century, noncitizens routinely enjoyed the right to vote as a matter of state and local
law. By contrast, the Constitution expressly restricts to citizens the right to hold
federal elective office.
13. Chew, supra note 5, at 596 n.5 (1953) (construing immigration regulation permitting
exclusion of aliens based on secret evidence not to apply to a returning permanent
resident alien because of the substantial constitutional concerns that such an
application would present).
14. Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).
15. Zadvydas v. Davis, 533 U.S. 6